MONOJ KUMAR MUKHERJEE, J. - (1.) In connection with Jorasanka P. S. Case No. 402 dated 7-8-90 registered u/Ss.307/34 of the Indian Penal Code (subsequently converted to one u/Ss. 302/34 of the IPC), the opposite party and four others were arrested on 25-9-90 and forwarded to the learned Additional Chief Metropolitan Magistrate, Calcutta ('Magistrate' for short) on 26-9-90. By orders made from time to time, the learned Magistrate authorised their detention, initially in police custody for twelve days and thereafter in jail custody for fifteen days at a stretch awaiting report, in final form, of investigation. The last of such orders was made by the learned Magistrate on 17-12-90 authorising detention of the accused persons in jail custody till 31-12-90. In the meantime on 21-12-90 to be precise the Investigating Officer submitted chargesheet against the five accused persons and on receipt thereof, the learned Magistrate passed the following order on that day : - "Received C.S. today against all the accused persons who are in J/C till 31-12-90. Cog. taken u/S.302/34, IPC. The next date for further hearing is fixed on 26-12-1990. Put up on 26-12-90 for orders."
(2.) The case was put up before the learned Magistrate on 26-12-1990 as directed and on subsequent dates also and various orders were passed. Ultimately, by an order dated 9-1-91, the learned Magistrate transferred the case to the learned Metropolitan Magistrate, 7th Court, Calcutta in accordance with S. 192(1) of the Code of Criminal Procedure. While the case was pending inquiry before the transferee Court, the opposite party, whose prayer for bail had earlier been rejected by the learned Magistrate, moved the City Sessions Court with a similar prayer. By his order dated 28- 1 91, the learned Chief Judge of that Court granted bail to the opposite party after recording the following finding : - "The Ld. Magistrate not having passed any order of remand on 21-12-90 u/S.309(2) of the Cr. P.C., the period of detention from 21-12-90 to 31-12-90 cannot be considered as the period of remand fixed by the Magistrate in exercise of his powers either u/S. 167 or u/S. 309(2), Cr. P.C. and, in terms of the aforesaid authority, the accused concerned must be held to have been detained in custody between 21-12-90 and 31-12-90 without any valid and legal orders of detention in custody passed by the Ld. Magistrate." The above order is under challenge in this revisional application filed by the State.
(3.) It appears that in passing the impugned order, the learned Judge relied upon the judgment delivered by the Karnataka High Court in the case of Gyanu v. State of Karnataka, reported in 1977 Cri. LJ 632. Undoubtedly, the judgment fully supports the view expressed by the learned Sessions Judge, but then having considered the relevant provisions of law, we regret our inability to share the steps of reasoning of the learned single Judge in the case of Gyanu (Supra).;